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Essex County Council (20 000 086)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 30 Jul 2021

The Ombudsman's final decision:

Summary: Mr B complained the Council failed to hold an annual review for his son for more than two years, failed to implement the provision in his son’s education, health and care plan, failed to provide his son with education while he was out of school, refused to allow his representative to attend an annual review meeting, issued several versions of the education, health and care plan which were inconsistent with what had been discussed, delayed issuing a final plan and failed to take action on safeguarding concerns. There is no fault in how the Council handled the safeguarding concerns or in relation to the representative attending an annual review meeting. The Council delayed holding an annual review for the education, health and care plan, failed to ensure all the provision in the plan was implemented and delayed issuing the final plan. An apology, payment to Mr B to reflect his time and trouble and the education his son missed and review of the procedure for handling annual reviews for education, health and care plans is satisfactory remedy.

The complaint

  1. The complainant, whom I shall refer to as Mr B, complained the Council:
    • failed to hold an annual review for his son’s education, health and care plan for more than two years;
    • failed to implement the provision within the education, health and care plan;
    • refused to allow his representative to attend the annual review meeting;
    • issued several versions of the education, health and care plan which were inconsistent with what had been discussed at the review;
    • delayed issuing a final plan in 2019;
    • failed to provide his son with education while he was out of school or attending school on a reduced timetable; and
    • failed to act on safeguarding issues at the school.
  2. Mr B says the failures by the Council meant he had to provide education to his son at home which affected his ability to work and led to his son missing out on provision.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because Mr B disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1), 26A(1), as amended and 34(3))
  2. If we are satisfied with a Council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. As part of the investigation, I have:
    • considered the complaint and Mr B's comments;
    • made enquiries of the Council and considered the comments and documents the Council provided.
  2. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
  3. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

Background

  1. Mr B’s son has had an education, health and care plan (EHCP) since 2017 and has special educational needs (SEN). The plan was not reviewed in 2018.
  2. In January 2019 the school began sending Mr B’s son home early regularly due to behavioural issues. Mr B removed his son from the school temporarily in February 2019 when he began expressing suicidal thoughts. A senior specialist educational psychologist provided guidance to the school about supporting Mr B’s son. The educational psychologist reminded the school of the need to contact the Council to tell it about the issues. After around a month out of school Mr B’s son returned to school for one hour a day as part of an agreed plan.
  3. The educational psychologist met with school staff in April 2019. The educational psychologist reminded the school of the need to involve the Council and to provide work for Mr B’s son when he was not at school. The meeting agreed to have a clear plan for the return to full-time and it was planned for an annual review to be held in May. The educational psychologist produced a report.
  4. The annual review for the EHCP took place on 11 and 12 July. On the morning of 11 July Mr B told the Council the school had refused to allow his representative to attend the meeting.
  5. The Council liaised with the school about the part-time timetable in July 2019. By that point Mr B’s son was attending school four hours per day Tuesday to Friday and receiving cognitive behaviour therapy on a Monday.
  6. Mr B’s son returned to a full-time timetable in September 2019.
  7. In September 2019 the Council reminded Mr B it needed his comments on the draft EHCP by 21 September. Mr B provided proposed changes to the plan and expressed some concerns about it. The Council sent Mr B a further amended plan on 30 September. Mr B asked for a final few changes on 1 October. The Council issued a further amended plan on 17 October. Mr B raised concerns the Council had removed reference to the number of hours in the plan. The Council says it does not normally include those hours in the plan. Mr B asked for more changes to the plan on 21 October. The Council said it considered the proposed changes acceptable. Mr B chased the Council for the final plan on 12 November and the Council apologised for the delay. The Council issued the final plan on 15 November.
  8. Mr B raised concerns about the school not following the plan again in early 2020.
  9. Mr B raised a safeguarding concern about the school in March 2020. The Council referred the matter to the local authority designated officer (LADO). The LADO told the Council Mr B should use the school’s complaints procedure. Mr B put in a complaint to the school.
  10. In March 2020 Mr B decided to move areas and this resulted in his son leaving the school and the Council’s area in June 2020.
  11. Mr B raised further concerns about potential safeguarding issues at the school in August 2020. The Council got the records from the school and decided the school had dealt with the issues properly and in accordance with the procedures. The Council did not identify any wider safeguarding issues.

SEN code of practice

  1. The SEN code of practice (the code) says EHCP’s must be reviewed by the local authority as a minimum every 12 months. It says the local authority should provide a list of children and young people who will require a review of their EHC plan that term to all headteachers and principals of schools, colleges and other institutions attended by children or young people with EHCP’s, at least two weeks before the start of each term.
  2. The code says the school must prepare and send a report of the meeting to everyone invited within two weeks of the meeting. The report must set out recommendations on any amendments required to the EHC plan, and should refer to any difference between the school or other institution’s recommendations and those of others attending the meeting
  3. Within four weeks of the review meeting, the local authority must decide whether it proposes to keep the EHCP as it is, amend the plan, or cease to maintain the plan, and notify the child’s parent or the young person and the school or other institution attended. If the plan needs to be amended, the local authority should start the process of amendment without delay.
  4. Following representations from the child’s parent or the young person, if the local authority decides to continue to make amendments, it must issue the amended EHCP as quickly as possible and within 8 weeks of the original amendment notice. If the local authority decides not to make the amendments, it must notify the child’s parent or the young person, explaining why, within the same time limit.

The Council’s guidance

  1. The Council has produced a policy document. This says the Council has a statutory duty under section 19 of the 1996 Education Act to make arrangements for the provision of suitable education at school or otherwise to children of compulsory school age who, by reason of illness, exclusion from school or otherwise may not for any period receive suitable education unless such arrangements are made for them. It goes on to say it will support children where illness prevents attendance at school and for anxious school refusers.
  2. The Council has produced guidance for schools on the use of reduced educational provision (the guidance). It states this is intended for pupils deemed medically fit to attend school. It says a reduced educational provision means an agreement made with the pupil, parent or carer and in some circumstances the Council that the number of hours spent in education is reduced for a time limited period of generally no more than 6-8 weeks.
  3. The guidance says reduced educational provision should only occur in exceptional circumstances where every other avenue to ensure a pupil receives full-time education has been exhausted. It lists what it expects those exceptional circumstances are likely to be which includes as part of a planned reintegration into school following an extended period out of school and as a temporary, fixed term closely monitored intervention to address and manage the impact of significantly challenging behaviour or emotional or social needs while alternative arrangements are made to meet the child’s needs or to coordinate with therapeutic intervention or other services.
  4. The guidance says the decision to introduce a reduced timetable should be part of a planned strategy which includes providing appropriate work for the pupil when not in school.
  5. The guidance says the school needs to ensure where pupils have an education, health and care plan the Council is involved to ensure the plan is reviewed and amended where appropriate. It says the Council must agree to the intervention and the reduced educational provision must not interfere with additional support given to a student due to their educational needs.

Analysis

  1. Mr B says the Council failed to hold an annual review for his son’s education, health and care plan between 2017 and 2019. The Council accepts it did not carry out an annual review in 2018. The Council says the responsibility for identifying the annual review date falls to the school. In this case the school did not identify the need for a review in 2018 and the Council did not pick it up until 2019. The SEN code of practice requires the Council to review every education, health and care plan as a minimum every 12 months. The Council is responsible for ensuring the review takes place and failure to have a process in place to pick up when a school has not identified the need for an annual review is fault. That meant Mr B’s son’s EHCP was not reviewed until 2019. That is a serious injustice, particularly as there were significant changes to the provision in the plan in 2019. I cannot speculate about whether those changes would have been required in 2018. However, I consider Mr B and his son have suffered an injustice as they are left with uncertainty about whether the provision would have changed earlier.
  2. Mr B says the Council failed to ensure the provision in his son’s EHCP was properly implemented before the July 2019 review. The evidence I have seen satisfies me before July 2019 the school attended by Mr B’s son was rated by OFSTED as requiring improvement and the Council had some concerns about the number of children on part-time timetables. The Council also notes after a meeting with the school in 2019 the school worked closely with the educational psychologist and there was a significant improvement in provision to Mr B’s son. That satisfies me, on the balance of probability, Mr B is right and before July 2019 his son did not receive all the provision in his EHCP. That is fault. As I said earlier, delay completing the review of the EHCP in 2018 also meant some provision was likely not in place that should have been.
  3. Mr B says despite the July 2019 review there were parts of his son’s EHCP the Council did not put into place. Having considered the documentary evidence I note there was a specific issue with the teacher providing education to Mr B’s son. Mr B’s son’s EHCP said the teacher should have a solid background in early years and SEN education. In this case, the qualified teacher left in April 2019 and was not replaced until January 2020. I understand during that time the vice principal took over. While I have no doubt the vice principal was an experienced teacher, he was not a teacher with a solid background in early years and SEN education. That meant this part of Mr B’s son’s EHCP was not met between April 2019 and January 2020. That is fault.
  4. Nor is there any evidence of liaison with Mr B to extend his son’s friendships at school into out of school contact or any evidence the Council completed CBT training for staff. Both were included in Mr B’s son’s plan. So, although I am satisfied provision to Mr B’s son improved significantly after the July 2019 review there were still parts of the provision not in place. That is fault. That has also caused Mr B frustration and led to him having to go to time and trouble to pursue his complaint.
  5. One of the concerns Mr B raised is about the failure to put in place the programme to address his son’s literacy the educational psychologist recommended. I am aware this was not in place. Instead, the documentary evidence shows the school provided a different literacy programme. While that did not follow the provision set out in the EHCP I am satisfied the educational psychologist considered the provision in place. The educational psychologist noted how much Mr B’s son had progressed using the methods in place and said those methods were acceptable and should continue. In those circumstances I do not criticise the Council on this specific point.
  6. Mr B says the Council refused to allow his representative to attend the annual review meeting on 11 and 12 July 2019. The evidence I have seen satisfies me it was the school, rather than the Council, that refused to allow the legal representative to attend. I have seen no evidence the Council knew of that refusal until the day of the meeting itself. I therefore have no grounds to criticise the Council.
  7. Mr B says the Council issued several versions of the EHCP after the July 2019 review. Mr B says those versions were inconsistent with what had been discussed, which delayed the overall process. The documentary evidence satisfies me the Council issued further versions of the draft plan to incorporate changes sought by Mr B. The changes I have been able to identify are fairly limited and do not significantly change the overall provision. I am satisfied the Council was trying to work with Mr B by incorporating changes he had asked for. I do not consider that fault.
  8. Mr B says the Council delayed issuing the final plan in 2019. The SEN code of practice says the Council should issue the final plan within eight weeks of the amendment notice. In this case the review meeting took place on 11 and 12 July 2019, which was just before the start of the school holidays. I recognise there was a delay between the beginning of the new school year in September 2019 and when the final plan was issued on 15 November 2019. However, I am also satisfied during that period the Council was seeking to work with Mr B to amend the plan to reflect the concerns he had raised. I do not criticise the Council for that. The evidence I have seen though satisfies me the Council accepted the final amendments on 21 October 2019. I cannot see any reason for delay issuing the final plan following that. I therefore consider the delay issuing the final plan between 21 October 2019 and 15 November 2019 fault.
  9. Mr B says the Council failed to provide his son with education while he was out of school or when he was attending school on a reduced timetable. There is conflicting information about the amount of time Mr B’s son was out of school in 2019. All agree though it was more than fifteen days. I have seen no evidence the school told the Council about Mr B’s son not attending school until he had already been out of school for several weeks. As the Council was not aware Mr B’s son was out of school I cannot criticise it for not liaising with the school to ensure suitable education provision was in place. I consider part of the problem here was the difficulty Mr B’s son was having in handling attending school. As I said earlier, by that point his EHCP was two years old and it is therefore possible if the review had taken place in 2018 and extra support put in place for him he may have been able to avoid being taken out of school and placed on a part time timetable. I therefore consider there is again some uncertainty about whether the situation would have been different if the review had taken place in 2018 and further provision put in place.
  10. For the period where Mr B’s son was on a reduced timetable, the documentary evidence shows there was a recognition he needed slow reintegration into school. Mr B’s son remained on roll at the school though and therefore the school was responsible for providing him with any work to complete at home. I am satisfied the Council liaised with the school to remind it of its responsibilities, including the need to provide him with work to do at home. I am also satisfied the need to plan the transition back into school was reflected in the revised EHCP issued in 2019. I am satisfied by the start of the new school year in September 2019 the provision had increased to full-time. However, I have seen no evidence to suggest the Council ensured a bespoke home education programme was put into place to enable Mr B son to catch up on the things he had missed before then, which was part of the provision in the revised plan in 2019. That is fault and means Mr B’s son likely did not receive amount of support he should have before he returned to a full-time timetable in September 2019.
  11. Mr B says the Council failed to act when he raised safeguarding concerns about the school. This concerns events in February and March 2020. On the first occasion Mr B complained the school left his son unattended for 30 minutes. On the second occasion Mr B complained the school failed to telephone him when his son reported feeling sad and unwell at a time when his medication had been reduced.
  12. I am satisfied the Council acted properly when made aware of those concerns by contacting the LADO. I am satisfied the LADO decided the school should investigate the concerns under its complaints policy, which the school was already doing. Despite that I am satisfied the safeguarding manager for schools and early years visited the school and spoke to the staff involved and the school’s safeguarding lead. The Council was satisfied following that visit there were no wider safeguarding concerns identified and the school had acted in accordance with its complaints policy. The Council nevertheless recommended for those children that are more vulnerable the school should keep written records three times a day of anything noteworthy, which the school agreed to do.
  13. I am satisfied the Council completed two further safeguarding investigations later in 2020. One of those followed a referral from OFSTED and the second followed Mr B raising retrospective concerns after his son had left the school. Again, I am satisfied on each occasion the Council visited the school to speak to those involved and inspected the school’s safeguarding records. On neither of those investigations did the Council identify any safeguarding issues to pursue. As I am satisfied the Council acted on the concerns raised and was satisfied with the actions of the school I have no grounds to criticise it.

Injustice and remedy

  1. So, I have found fault as the Council delayed completing the annual review, delayed issuing the final plan, failed to ensure Mr B’s son received all the provision in his EHCP and failed to ensure a bespoke timetable was put into place to enable Mr B’s son to catch up on things he had missed before he returned to full time education. It is clear this has caused Mr B significant distress and led to him having to go to time and trouble to pursue the complaint. It is also likely Mr B’s son missed some provision due to the fault. Mr B’s son has now left the school and so there is no point in making recommendations about provision going forward. I therefore recommended as part of the remedy for the complaint the Council apologise to Mr B and pay him £750 to reflect his frustration, his time and trouble in pursuing the complaint and his uncertainty about whether some issues could have been avoided if the Council had carried out the annual review in 2018 as it should have done. The Council has agreed to my recommendations.
  2. For the lost special educational needs provision for Mr B’s son, the Ombudsman normally recommends an amount between £200 and £600 per month of lost education, depending on the level of education missed. As there is no evidence of concerns raised with the Council about the provision in 2018 I do not recommend any financial remedy for the earlier period. It is clear though things had changed by February 2019 given Mr B had to remove his son from school due to the impact it was having on his mental health. As I said earlier, once the Council reviewed the plan more provision was put into place for him. It is also clear that due to difficulties at the school Mr B’s son was not receiving everything he should have been receiving according to his EHCP.
  3. As some parts of the plan were in place though I recommended the Council pay Mr B £300 per month for those months between January and July 2019 when his son received some education. That is to reflect the lost SEN provision when his son was either on a reduced timetable or sent home from school early and to reflect the fact not all parts of the SEN provision were in place. I recommended £600 for the month when Mr B’s son received no education at all. That makes a total of £2,400 for the period January-July 2019. I recommended the Council pay a further £1,000 to reflect the missing provision from September 2019, which reflects the fact more provision was in place for Mr B’s son but also the lack of a bespoke timetable and suitably qualified teacher. That makes a total of £750 payment to Mr B and £3,400 for Mr B to use for his son’s benefit. The Council has agreed to my recommendations.
  4. The Council says it has begun work to develop a system for monitoring the receipt of annual reviews and intends to review the process to ensure there is a robust timetable for quarterly/annual monitoring of enhanced provisions. I need the Council to provide evidence of the changes it has made to address the issue of missed annual reviews.

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Agreed action

  1. Within one month of my decision the Council should:
    • apologise to Mr B for the faults identified in this statement which caused him distress, uncertainty, time and trouble pursuing the complaint and led to his son missing out on education and SEN provision;
    • pay Mr B £750 to reflect his distress, uncertainty and time and trouble; and
    • pay Mr B £3,400 to reflect the lost provision to his son.
  2. Within two months of my decision the Council should provide evidence it has reviewed its process for managing annual reviews of education, health and care plans to ensure those reviews are not missed in future.

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Final decision

  1. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman

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